State v. Rivera
| Decision Date | 08 February 2017 |
| Docket Number | NO. 33,908,33,908 |
| Parties | STATE OF NEW MEXICO, Plaintiff-Appellee, v. JOE RIVERA, Defendant-Appellant. |
| Court | Court of Appeals of New Mexico |
This memorandum opinion was not selected for publication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date.
APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY
Hector H. Balderas, Attorney General
Maris Veidemanis, Assistant Attorney General
for Appellee
Bennett J. Baur, Chief Public Defender
Kimberly Chavez Cook, Assistant Appellate Defender
Santa Fe, NM
for Appellant
{1} Defendant Joe Rivera appeals from his convictions for second degree murder, contrary to NMSA 1978, Section 30-2-1(B) (1994), voluntary manslaughter, contrary to NMSA 1978, Section 30-2-3(A) (1994), tampering with evidence, contrary to NMSA 1978, Section 30-22-5 (2003), and conspiracy to commit tampering with evidence, contrary to Section 30-22-5 and NMSA 1978, Section 30-28-2 (1979). Defendant asserts that various evidentiary errors, as well as the district court's failure to give a jury instruction specifically tailored to Defendant's multiple-assailant theory, require reversal. For the reasons discussed herein, Defendant's claims of error lack merit and, therefore, we affirm.
{2} On the evening of December 25, 2012, Ronnie Montano invited Defendant's then-girlfriend, Cassandra Valencia, to a party at the home of John Griego. Defendant, his stepbrother Isaac Cordova, Selena Valencia, and two other acquaintances accompanied Cassandra to the party. Selena drove Defendant's group to the party in her vehicle. Montano met the group in the driveway upon their arrival. The arrival of Defendant's group upset Griego, and the atmosphere at the party was tense. Defendant's group stayed at the party for a while but then decided to leave. They negotiated the purchase of a bottle of liquor from Griego prior to departing.
{3} Defendant's group exited the house after purchasing the liquor. As Cordova walked through the carport toward Selena's vehicle, he was shoved by one of Griego's friends, Nick Baker. Defendant moved to help Cordova and began to fight with Baker. Defendant was pushed or thrown to the ground, at which point he shot Baker and Griego.1 Baker was shot once in the chest. Griego was shot twice: once in the chest and once in the pelvic area. Both Baker and Griego died from their wounds.
{4} After the shooting, Defendant ran down the road and entered Selena's vehicle. Defendant, Cordova, and Cassandra exited the vehicle at an automotive shop and proceeded to a nearby apartment. They stayed at the apartment that evening and left the next day.
{5} Defendant was arrested on December 31, 2012. That same day, Santa Fe County Sheriff's Department Detectives Paul Colombe and Andrew Quintana interviewed Defendant. As Detective Colombe was reading the Miranda warnings, Defendant interrupted and asked if the detectives "could call my lawyer—Dan Marlowe?" Detective Colombe finished reading the Miranda warnings and then posed additional questions to Defendant. Following these questions, Defendant agreed to speak to the detectives. He signed a Miranda waiver and gave a statement to thedetectives, during which he stated on numerous occasions that he threw away the gun and the jersey he was wearing while running away from the scene. The State introduced a video recording of Defendant's statement at trial.
{6} Defendant made phone calls to friends and family members while incarcerated prior to trial. These calls were recorded by the phone system at the Santa Fe County jail. Upon request of the Santa Fe County Sheriff's Department, the Santa Fe County Department of Corrections produced recordings of Defendant's phone calls. The State introduced these audio recordings at trial.
{7} In addition to testimony from witnesses who attended the party, the State offered expert witness testimony related to the trajectory of the bullets that killed Baker and Griego. New Mexico State Police Crime Scene Investigator Clay Goret (Agent Goret) was the primary expert witness on this topic. The district court qualified Agent Goret as an expert in crime scene reconstruction, including bullet trajectory analysis as "a portion of crime scene reconstruction." Agent Goret testified that, in his opinion, Griego was shot once while standing up and once while lying on the ground. He also utilized computer-generated simulations to demonstrate to the jury the possible and likely positions of Defendant and Griego at the time each shot was fired. Defendant did not object to the admission of these computer-generated simulation exhibits at trial.
{8} After testimony concluded, the district court instructed the jury regarding Defendant's claim that he shot Baker and Griego in self-defense or in defense of another. Defendant did not object to the jury instructions as given or request a jury instruction specifically tailored to the issue of self-defense against multiple assailants.
{9} The jury convicted Defendant of voluntary manslaughter for the killing of Baker and second degree murder for the killing of Griego. It also convicted Defendant of tampering with evidence and conspiracy to commit tampering. This appeal resulted.
{10} Defendant argues on appeal that the district court's admission of certain evidence constituted reversible error. These alleged evidentiary errors include the admission of (1) a video recording of a statement obtained in violation of Defendant's Miranda right to counsel; (2) audio recordings of Defendant's phone calls from jail; (3) expert witness testimony by Agent Goret related to bullet trajectory; and (4) computer-generated simulation exhibits associated with Agent Goret's testimony. We review the district court's admission of evidence for abuse of discretion. State v. Thompson, 2009-NMCA-076, ¶ 11, 146 N.M. 663, 213 P.3d 813. "An abuse of discretion occurs when the [district court's] ruling is clearly against the logic and effect of the facts and circumstances of the case." Id. (internal quotation marks and citation omitted).
{11} Defendant claims that the district court admitted evidence obtained in violation of his Miranda right to counsel. This claim raises the possibility of constitutional error, which is harmless only if there is "no reasonable possibility" that the error contributed to the defendant's conviction. State v. Tollardo, 2012-NMSC-008, ¶ 32, 275 P.3d 110 (internal quotation marks and citation omitted). After his arrest, Defendant was interviewed by Detectives Colombe and Quintana. During Detective Colombe's recitation of the Miranda warnings, Defendant interrupted and asked, "Do you think you could call my lawyer—Dan Marlowe?" Defendant argues that this request constituted an unequivocal invocation of his Miranda right to counsel, which necessitated that the detectives immediately terminate the interview. The State argues in response that, regardless of the initial effect of Defendant's request, he then validly waived his right to counsel prior to giving his statement to the detectives.
{12} We believe that the facts present a close question as to whether Defendant's statement resulted from a violation of his constitutional rights. However, Defendant has not demonstrated in his briefing how the admission of his statement to the detectives prejudiced his defense. The harmless error rule provides that "[i]mproperly admitted evidence is not grounds for a new trial unless the error is determined to be harmful." Tollardo, 2012-NMSC-008, ¶ 25. "[A]n error without prejudice is alwaysharmless error." State ex rel. Nw. Colonization & Improvement Co. of Chihuahua v. Huller, 1918-NMSC-001, ¶ 27, 23 N.M. 306, 168 P. 528. To justify reversal due to constitutional error, "the defendant has the burden to demonstrate prejudice." State v. Holly, 2009-NMSC-004, ¶ 28, 145 N.M. 513, 201 P.3d 844. Even if we assume that the district court's admission of the evidence constituted error, because Defendant has not demonstrated how such error prejudiced his defense, we must conclude that any error was harmless. However, because we consider a confession to a homicide to be inherently prejudicial under most circumstances, we provide additional discussion for the benefit of the parties.
{13} Defendant testified, consistent with his statement to the detectives, that he fired shots during an altercation with Baker and Griego and threw the gun away as he fled the scene on foot. Defendant also testified, again consistent with his statement to the detectives, that he believed that he only fired two shots. Because Defendant's trial testimony was cumulative to his statement to the detectives, it is difficult to say what effect its admission had on the jury's verdict. See State v. Johnson, 2004-NMSC-029, ¶ 37, 136 N.M. 348, 98 P.3d 998 (). Certainly the prejudicial effect of the statement itself is diminished by Defendant'scorroborating testimony. However, the admission of such evidence could conceivably have impacted Defendant's trial strategy—specifically by compelling Defendant to either (1) testify at trial or (2) testify in a certain manner at trial. We address these issues in turn.
{14} The record before this Court indicates that Defendant intended to testify at trial regardless of whether the district court admitted his statement into evidence. In opening statements, defense counsel stated that the jury...
To continue reading
Request your trial